People ex rel. Talbot Paving Co. v. City of Pontiac , 185 Ill. 437 ( 1900 )

Mr. Justice Craig

delivered the opinion of the court:

By an act of the legislature approved June 19, 1897, the law in regard to local improvements was changed. By the repealing clause of the new act the law then subsisting continued to govern as to all proceedings relating to local improvements then pending in any court. (Laws of 1897, p. 135.) Here the proceedings were pending when the act of 1897 became a law, consequently the law in force in 1895 must control in this case. Section 46 of article 9 of the City and Village act (Hurd’s Stat. 1889, p. 267,) provides: “If any assessment shall be annulled by the city council or board of trustees, or set aside by any court, a new assessment may be made and returned, and like notice given and proceedings had, as herein required in relation to the first; and all parties in interest shall have the like rights, and the city council or board of trustees and court shall perform like duties and have like power in relation tp -any subsequent assessment, as are hereby given in relatien tp the first assessment.”

As has been seen, the assessment made in this case was set aside by this court upon the ground that certain parts of the ordinance conferred discretionary powers on the city engineer in three respects, to-wit: First, that the specifications, which were made a part of the ordinance, provided that inlets and catch-basin covers be placed at street corners where directed by the engineer; second, that cross-walks be built, in such form as directed by him, at street intersections and other points; third, that the specifications empower the engineer, in his discretion, to make certain alterations which increase or diminish the expense of the improvement. The assessment having been set aside by this court, the first question to be considered is whether the city of Pontiac had the power to remedy the defects existing in the ordinance and make a new assessment.

The language of section 46 is plain arid free from ambiguity, and unless the language used is to -be disregarded the power to make a new assessment is clearly conferred. Indeed, the question is not an open one in this court, but, on the other hand, we think it was settled in Freeport Street Railway Co.v. City of Freeport, 151 Ill. 451, City of East St. Louis v. Albrecht, 150 id. 506, Foster v. City of Alton, 173 id. 587, and other like cases. In the Freeport case it was said (p. 457): “The power of municipal authorities is not exhausted by the first assessment if it is annulled or set aside or for any reason proves inadequate for the payment of the improvement made, but such authorities have the right and maybe compelled to make, additional levies necessary to pay contractors for work done and material furnished under an ordinance authorizing the same. These decisions in no way conflict with City of Carlyle v. County of Clinton, 140 Ill. 512. Every contractor for a public local improvement is presumed to know that the municipality has attempted to exercise its power in the mode required by the statute to authorize the improvement, but he is not chargeable with knowledge of defects in the ordinance or the manner of its passage which may invalidate it, power being given by section 49, supra, to correct such defects by a re-assessment. The passage of a valid ordinance must undoubtedly precede the levy of every special' assessment or special tax, whether it be an original levy or a re-assessment, but in the latter case such ordinance need not precede the doing of the work, —and to that effect is Ricketts v. Village of Hyde Park, 85 Ill. 110, and cases there cited.”

In the Albrecht case it was said (p. 512): “It need only be observed, this case is wholly unlike those in which it has been held that where the improvement has been ordered by ordinance, and the assessment has been annulled by the city council or board of trustees or set aside by any court, a new assessment may be made, as provided in section 46 of article 9 of the City and Village act. In those cases the existence of an ordinance when the work was done is the basis of the re-assessment. Even where the original ordinance proves defective and insufficient to support the assessment, yet if not absolutely void it may be amended or the defect cured by a supplemental ordinance and a re-assessment made.”

In the Foster case it was contended that the original ordinance for the improvement was void, upon the ground that it failed to describe any improvement, and that such an ordinance, after the improvement had been made, could not be the foundation for a new assessment. But in disposing of the question the court said (p. 592): “Where there is an attempted ordinance which is absolutely void there is no ordinance at the time the work is done. But that is not the case here. The defect was not one which the city could not cure, but it could be remedied by amendment and the ordinance made perfect, so that a new and valid assessment could be levied. Section 46 of article 9 provides for such new assessment where an assessment has been set aside by any court; and where the ordinance is not a nullity but merely inadequate the new assessment may be levied.”

Here the whole ordinance was not involved, but it was only in reg'ard to a small portion thereof that objection was interposed and sustained. It is a well established rule in regard to by-laws and ordinances, that if a provision relating to one subject matter be void and as to another valid, and the two are not necessarily or inseparably connected, it may be enforced as to the valid portion as if the void part had been omitted. (Wilbur v. City of Springfield, 123 Ill. 395.) The defect in the ordinance in question in placing" discretionary power in the engineer was one which could easily be eliminated from the ordinance by an amendment, and thus the ordinance could be made perfect, so that a new and valid assessment could be levied. Was it the duty of the city of Pontiac to make the amendment and follow the amendment by a new assessment, so that the petitioner might be paid for the work he had constructed for the city?

It appears from the petition that the petitioner had completed the improvement according to contract with the city and the work had been accepted by the city., The petitioner’s labor and money have gone into the improvement and the city is enjoying the benefits to flow from the improvement, but the city has not paid for the improvement nor has it made any effort to do so since the assessment was set aside, but, on the other hand, when notified by the petitioner the city council refused to take any steps to pay petitioner for his labor and materials invested in the improvement. It is true that under the contract petitioner was to be paid from and out of the money to be raised by the assessment, and it is also true that the city did not personally assume the payment for the improvement; but the city did assume the obligation to collect the assessment imposed to pay for the improvement, and that obligation, in connection with the other facts and circumstances in the case, required the city to use all reasonable efforts within its power to make and collect a new assessment to pay petitioner for the labor and materials used in the construction of the improvement, as provided in the contract. The defect was one which the city could cure by an amendment to the ordinance so that a new and valid assessment could be levied, and it was a duty resting on the city to make the amendment and follow that up with a new assessment.

From what has been said it follows that a writ should be awarded. A peremptory writ of mandamus will be ordered, as prayed for in the petition.

Mandamus awarded.